High Court of Jharkhand sustained the conviction for excise offence under Section 47 of the Excise Act but modified the sentence to a fine of Rs. 5000/- in light of the petitioner's age, advanced age of the case, and prior custody served.
Sentence modified to payment of fine of Rs. 5000 within 4 months; bail bond discharged subject to payment.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 36 of 2004
Niwaran Mandal ..… Petitioner
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Petitioner : Ms. J.S.Mazumdar. Advocate For the State : Mr. Manoj Kr. Mishra, APP ---------
04/Dated: 20th April, 2022
Heard learned counsel for the parties.
2. Though the notice was issued on the last occasion, however, Ms. J.S.Mazumdar, learned Advocate submits that she will assist the court on the behalf of the petitioner.
3. This criminal revision application is directed against the judgment dated 09.12.2003, passed by the learned 12th Additional Sessions Judge, Dhanbad in Criminal Appeal No. 149 of 2000; whereby the judgment of conviction and order of sentence dated 29.09. 2000 passed by the learned Judicial Magistrate, 1st Class, Dhanbad, whereby the petitioner has been convicted for the offence under Section 47 (a) of the Excise Act and sentenced him to undergo R.I. of 6 months for the offence under Section 47 (a) of the Excise Act in connection with C.E.Case No. 144 of 1998 has been affirmed with a modification in the sentence to the effect that the sentence of the petitioner was reduced from 6 months to 3 months with a fine of Rs. 500/- and in default of payment of fine further simple imprisonment of 15 days.
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4. The prosecution case in brief is that on 30.01.1998 at around 11.00 O’clock a raid was conducted in the house of the petitioner by the Excise Inspector and other personnels of the Excise Department and during the raid 70 kg. Jawa Mahua and 15 litres of illicit distilled liquor were seized from the house of the petitioner. Thereafter a seizure list was prepared in presence of 2 independent witnesses. It is further alleged that at the time of alleged raid the petitioner was not present in his house. On the basis of the aforesaid facts the present case was instituted under Sections 47 (a) of the Excise Act.
5. At the outset, Ms. J.Mazumdar, learned counsel for the petitioner submits that the petitioner is not a habitual offender. The petitioner has also undergone 67 days imprisonment and now the petitioner is an aged person. As such, she is confining her prayer only on the question of sentence as the petitioner is an aged person and sending him back to jail at this stage even for short period will hamper the entire family; as such the sentence may be modified in lieu of fine.
6. Learned APP opposes the prayer of the petitioner and submits that there is concurrent finding and there is no error in the impugned judgments. As such, the conviction cannot be set aside, however the sentence may be modified in lieu of fine.
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7. After going through the impugned judgments including the lower court records and keeping in mind the limited submissions of the learned counsel for the petitioner and also the scope of revision jurisdiction, I am not inclined to interfere with the finding of the courts below and as such the judgment of conviction passed by the learned trial court and upheld with modification by the learned appellate court is, hereby, sustained.
8. However, so far as sentence is concerned, it is apparent from record that the incident is of the year 1998 and 23 years have elapsed and the petitioner must have suffered the rigors of litigation for the last 23 years. The petitioner also remained in custody for about 67 days and it is not stated that the petitioner has ever misused the privilege of bail. Further, the incident does not reflect any cruelty on the part of the petitioner or any mental depravity. 9. In a situation of this nature, I am of the opinion that no fruitful purpose would be served by sending the petitioner/convict back to prison; rather interest of justice would be sufficed if the sentence is modified in lieu of fine.
10. Thus, the sentence passed by the Court below is, hereby, further modified to the extent that the petitioner is sentenced to undergo for the period already undergone, subject to the payment of fine of Rs. 5000/-.
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11. It is made clear that the petitioner shall pay the aforesaid fine of Rs.5000/- within a period of 4 months from today before the court below, failing which he shall serve rest of the sentence as ordered by the learned court below.
12. With the aforesaid observations, directions and modification in sentence only, the instant criminal revision application stands disposed of.
13. The petitioner shall be discharged from the liability of his bail bond, subject to fulfillment of aforesaid condition.
14. Let a copy of this order be communicated to the courts below and also to the petitioner through the officer-in-charge of concerned police station.
15. Let the lower court record be sent to the court concerned forthwith.
(Deepak Roshan, J.)
Amardeep/
1 issue framed by the court
Whether the conviction should be sustained given the age of the petitioner and the delay in litigation?
Colour shows how this judgement treated each authority
Criminal Appeal No. 149 of 2000Referred¶3
Criminal Appeal No. 149 of 2000
Criminal Case No. 144 of 1998Referred¶3
Criminal Case No. 144 of 1998
1 provisions across 1 enactments
Niwaran Mandal
State
DEEPAK ROSHAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
